TMI Blog2011 (2) TMI 1256X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent has not violated any of such conditions and thus, the concerned authority illegally refused renewal of the benefit and the learned Tribunal rightly restored, no substance in the present writ-application and the same is accordingly dismissed - W.P.T.T. No. 1 of 2011 - - - Dated:- 4-2-2011 - Bhaskar Bhattacharya, Sambuddha Chakrabarti, JJ. Seba Roy and Soma Kar Ghosh for the Petitioner R.N. Bajoria, Samir Kumar Chakraborty, D. Basu Thakur and Piyal Gupta for the Respondent Bhaskar Bhattacharya, J This application under Article 226 of the Constitution of India is at the instance of the State of West Bengal and is directed against an order dated August 6, 2010, passed by the West Bengal Taxation Tribunal in case No. R.N. No.644 of 2009 thereby setting aside the order dated July 27, 2009, passed by the Joint Commissioner of Sales Tax, Special Cell, the respondent no. 3, by which the said respondent rejected the application of the respondent No.1 for renewal of the eligibility certificate for the period of April, 06 - March, 07 and April, 07 - March, 08. The following facts are not in dispute: The respondent no. 1/company started its first p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e remission under Section 118(1)(c) of the WBVAT Act, 2003. The respondent no. 1 had shown cause alleging that none of the terms and conditions as prescribed in the eligibility certificate had been violated and at the time of renewal of eligibility certificate, only compliance of Rule 187(2) of the WBVAT Rules, 2005 needs to be examined by the appropriate authority. The Joint Commissioner Sales Tax, Special Cell, however, by his order dated 27th July, 2009 overruled the aforesaid contention of the respondent no. 1 and consequently, the application for renewal was dismissed. Being dissatisfied, the respondent no. 1 filed an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 and by the order impugned in this application, the Tribunal has set aside the order of the Joint Commissioner and held that the respondent no. 1 was entitled to get eligibility certificate renewed for the period concerned. Mrs. Roy, the learned advocate appearing on behalf of the petitioner, strenuously contended before us that the learned Tribunal below failed to consider that the State Government introduced the incentive scheme to promote industrialization in the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1994, Section 41 of the Act which provides for remission of tax to new or expanded portion of existing industrial unit, Rules 146 to 151 of the West Bengal Sales Tax Rules, 1995 providing for grant of eligibility certificate and renewal thereof, the provisions of Section 118 of the West Bengal Value Added Tax Act, 2003 providing benefit of remission of tax for unexpired period of EC under the 1994 Act, the definition of existing industrial unit and expanded portion under the West Bengal Value Added Tax Rules, 2005 and Rules 177, 184-187 of the 2005 Rules providing for remission of tax and grant of EC and renewal thereof respectively and those are quoted below: Section 40 (12) Explanation:- The expression 'existing industrial unit' shall mean an industrial unit which exists in West Bengal and manufactures goods in such unit immediately before it starts commercial production in its expanded portion on or after the appointed day; The expression 'expanded portion', in relation to an existing industrial unit, shall mean the portion expanded with additional capacity on or after the appointed day with the approval of the State Government for the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted under sub-rule (1) shall, subject to the provisions of the rules in this Chapter, be valid for a period not exceeding twelve months from the date of commencement of the eligible period referred to in rule 103, rule 116, rule 129 or rule 138, as the case may be. (3) When the Deputy Commissioner or the Assistant Commissioner is satisfied that the information furnished in the application referred to in rule 147 is not correct and complete, or that the dealer has not complied with the requirements of the provisions of the Act and the rules as mentioned in sub-rule (1), he shall reject the application for reasons to be recorded in writing: Provided that before such application is rejected, the dealer shall be given a reasonable opportunity of being heard. Rule 149: Renewal of certificate of eligibility for deferment of payment of tax or remission of tax:- (1) A dealer shall, within thirty days before the expiry of the validity of the certificate of eligibility granted under sub-rule (1) of rule 148, or renewed earlier this rule, make an application to the Deputy Commissioner or the Assistant Commissioner, as the case may be, for renewal of his certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is sub-rule may be entertained by the said authority if the dealer satisfies the aforesaid authority that he had sufficient cause for not presenting this application within such specified period. (2)The application in Form 23 shall specify, inter alia, the amount of capital investment subsidy which is receivable by him. (3)The dealer shall, while making an application under sub-rule (1), enclose with such application a xerox copy of the certificate issued by the Directorate of Industries, Government of West Bengal. (2)The provisions of rule 148 or rule 149, as the case may be, shall, in so far as they relate to disposal of an application for certificate of eligibility or renewal thereof, apply mutatis mutandis to the application made under sub-rule (1) for deferment of payment of tax or remission of tax in lieu of capital investment subsidy. Rule 151: Maintenance of accounts, vouchers, documents, etc. by the dealer for the purpose of deferment of payment of tax or remission of tax:- (1) Any registered dealer who claims deferment of payment of tax under section 40 or remission of tax under section 41 shall maintain such vouchers or documents as may be requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , of the West Bengal Sales Tax Act, 1994 (West Ben. Act XLIX of 1994), for a specified period or for a specified amount determined with respect to gross value of the fixed capital assets, and who would have continued to be so eligible on such appointed day under that Act had this Act not come into force, may be allowed deferment of payment of output tax payable by him under this Act by the Commissioner, for the balance un-expired period or the balance eligible amount, as the case may be, with respect to gross value of the fixed capital assets, whichever expires earlier; (b)where a registered dealer was enjoying benefit of tax holiday under section 39 of the West Bengal Sales Tax Act, 1994, for a specified period, immediately before the appointed day and who would have continued to be so eligible on such appointed day under that Act had this Act not come into force, may be allowed such tax holiday by way of exemption of output tax payable by him under this Act by the Commissioner for the balance unexpired period or until the aggregate of the benefit of exemption from payment of tax enjoyed by such dealer under section 39 of the West Bengal Sales Tax Act, 1994, computed from fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the expiry of the available eligible period referred to in sub-rule (2). (8) For the purposes of clause (a) and clause (c) of sub-section (1) of section 118, - (a)the expression newly set up industrial unit shall mean an industrial unit which is entitled to enjoy deferment of payment of output tax under the clause (a) of sub-section (1) of section 118, or remission of output tax under the clause (c) of sub-section (1) of section 118, as the case may be, and having investment in fixed capital asset exceeding ten lakh rupees which is established and commissioned by the dealer for the manufacture of goods in West Bengal for the first time on or after the first day of May, 1995 under any scheme approved by the State Government and which is registered with the appropriate authority prescribed by the State Government for such purpose; (b)the expression existing industrial unit shall mean an industrial unit in West Bengal which is entitled to enjoy deferment of payment of output tax under the clause (a) of sub-section (1) of section 118, or remission of output tax under the clause (c) of sub-section (1) of section 118, and manufactures goods in such unit immediatel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the West Bengal Sales Tax Act, 1994 (hereinafter referred to as the previous Act ) on sales of goods manufactured in such newly set up industrial unit or expanded portion of existing industrial unit, as the case may be, on the appointed day had this Act not come into force, or the amount (hereinafter referred to as the balance available amount ) in rupees which remains after deducting the amount of tax that has already been remitted by him under the provisions of the previous Act, up to the day immediately preceding the appointed day, or seventy-five crore rupees, whichever is less: Provided that where the location of a newly set up industrial unit in West Bengal or the expanded portion of an existing industrial unit in West Bengal has been changed, either in full or in part, to a place with a higher available eligible period, such newly set up industrial unit or the expanded portion of an existing industrial unit, as the case may be, shall not be entitled to such higher available eligible period for such change of location: Provided further that where such unit has been relocated, either in full or in part, to a place with a shorter eligibility period, the total eligib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the application referred to in rule 184, and that such dealer has complied with the requirements of the provisions of the Act and the rules for the purpose of clause (a), or clause (c), as the case may be, of sub-section (1) of section 116, and such registered dealer is eligible to enjoy the deferment of payment of tax or remission of tax under clause (a), or clause (c) section 118, the Senior Joint Commissioner or the Joint Commissioner or the Deputy Commissioner, as the case may be, shall grant a certificate of eligibility in Form No. 77 to such dealer. (2)The certificate of eligibility granted under sub-rule (1) shall, subject to the provisions of the rules in this Chapter, be valid for a period not exceeding twelve months from the appointed day. (3)When the Senior Joint Commissioner or the Joint Commissioner or the Deputy Commissioner is satisfied that the information furnished in the application referred to in rule 184 is not correct and complete, or that the dealer has not complied with the requirements of the provisions of the Act and the rules as mentioned in sub-rule (1), or that the dealer is not entitled to enjoy the benefit of deferment of tax or remissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red dealer who claims deferment of payment of tax under clause (a) of sub-section (1) of section 118 or remission of tax under clause (c) of sub-section (1) of section 118 shall, in addition to the vouchers or documents referred to in sub-rule (1), maintain - (a)separate accounts in respect of sales of goods manufactured in his newly set up industrial unit or in the expanded portion of his existing industrial unit, (b)separate specially numbered tax invoices, invoices, cash memos or bills and delivery notes or challans in respect of sales of goods manufactured in his newly set up industrial unit or in the expanded portion of his existing industrial unit, (c)tax involves, invoices, cash memos or bills and delivery notes or challans in respect of purchases of goods including plant and machinery for use directly in the manufacture of goods in his newly set up industrial unit or in the expanded portion of his existing industrial unit, (d)separate registers, for stock of goods purchased for use directly in the manufacture of goods and for stock of goods manufactured in his newly set up industrial unit or in the expanded portion of his existing industrial unit. 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